ASP 12th Assembly Resolution 7 vs Presence of UhuRuto at the ICC

As the euphoria and celebration come to an end regarding the Kenyan victory over the ICC as stipulated in the amendments to the Rules of Procedure and Evidence (RPE) granting UhuRuto blanket excusal from attending their cases, its time to take a critical look as we always do, at what really happened.

We have read a lot of inputs from different actors and it all boils down to, will Uhuru attend his trial when it starts in February or will the ICC be pressured to grant him excusal from the proceedings? As for Ruto, well that’s a done deal, he will continue to attend to the very bitter end, but we shall nevertheless still consider also whether his continued attendance/presence under the amended RPE is impacted

So first a look at the text

John Dibbley also reminds us to pay attention to the Appeals Chamber ruling and for which the relevant articles under the Rome Statute (RS) used in the rationale remain unchanged, and the possibility that where there is conflict between the RPE vs RS, then the RS prevails.

This post assumes that there is no conflict and that the RPE will be in effect as adopted come February and either the Trial Chamber or Appeals have to make a ruling on excusal

I am drawn to the language in the amendment and its most likely intepretation by the judges

The amended RPE provides for four possibilities

a) accused to attend all sessions
b) 134bis accused attend via video link (this is very precise – see note below) to be decided on a case by case
c) 134ter excusal of accused from attending under exceptional circumstances also to be decided on a case by case
d) 134quater excusal of accused from attending due to extraordinary public duties

Generally speaking attendance is mandatory but lets look at (c). If we review the ruling by the Appeals Chamber reversing blanket excusal granted by the Trials Chamber and directing that the Trial Chamber instead exercises its discretion such that attendance is the norm while excusal is on exceptional basis, and this is soundly backed by various articles in the RS, so therefore options (a) and (c) above are adequately covered by that ruling and therefore in my opinion 134ter offers nothing new. It was already applied by the Trial Chamber and the Appeals Chamber reversed that and there is nothing added

We therefore have options (b) and (d) to consider

Starting with option (b) i.e 134ter – providing an option for the accused to attend via “video link” in my view is a poisoned chalice. Note that comparison is given with a case in which the accused is removed for disruptive behavior and placed under detention at ICC facilities and herein lies the problem. The video conference facility is on premises or within technology provision of ICC, essentially their internal networking.

Now the ICC will need to be protected or insulated for failure resulting from technology failure (poor connectivity, power outage, etc) associated with data transmission across continents. i.e the court cannot be blamed and the accused cannot in turn not blame bad technology for lack of appearance if granted video link – note that audio link would be more reliable, but unfortunately can be faked (for that matter, so can video link) nevertheless, video transmission/conferencing still is quirky and prone to failure, severe lag, etc. The court will therefore have to establish and likely repeatedly test reliability and most likely will have to second an officer to be present on the other side of the transmission for credibility. This method of administration of justice will most likely be an unreliable and expensive undertaking for the courts and hostile to the officer seconded to the remote site. Considering the budgetary constraints, I’d be interested in knowing how the ICC presidency will respond to that possibility. There will be some significant logistical considerations to be taken into account. So 134ter is possible but someone needs to take financial and functional responsibility for the logistics

And then lastly is option (d) – 134quater, this is the so called sucker punch that Kenya will apply for so that Uhuru is excused from attending.

Excusal from presence at trial due to extraordinary public duties
1. An accused subject to a summons to appear who is mandated to fulfill
extraordinary public duties at the highest national level may submit a written
request to the Trial Chamber to be excused and to be represented by counsel
only; the request must specify that the accused explicitly waives the right to be
present at the trial.
2. The Trial Chamber shall consider the request expeditiously and, if
alternative measures are inadequate, shall grant the request where it determines
that it is in the interests of justice and provided that the rights of the accused are
fully ensured. The decision shall be taken with due regard to the subject matter
of the specific hearings in question and is subject to review at any time.”

I believe the judges at the Trial and Appeals Chambers will be required to interpret what constitutes “Extraordinary public duties”
Just like they did with Ruto when granting his excusal, i.e they will have to read the Constitution of Kenya and then tie that into the RS and RPE to make that determination. Granted judicial intepretation is a complex exercise and could go in a lot of different directions, however looking at Ruto’s case, the judges determined that when Uhuru is out of country, then Ruto is required by the law (constitution) to be in country to deputise, and thus far that is how he has obtained excusals

These very circumstances are in fact what sets the stage or framework for what kind of excusal Uhuru can get, i.e it has already been established for a fact that when Uhuru is out, Ruto can deputise.

So the question then is, what are the “Extraordinary” circumstances under which Ruto CANNOT deputise for Uhuru

The Kenya constitution lists these under article 134 (2)

Exercise of presidential powers during temporary incumbency.
(1) A person who holds the office of President or who is authorised in terms of this Constitution to exercise the powers of the President —
(a) during the period commencing on the date of the first vote in a presidential election, and ending when the newly elected President assumes office; or
(b) while the President is absent or incapacitated, or at other times contemplated in Article 147 (3), may not exercise the powers of the President specified in clause (2).
(2) The powers referred to in clause (1) are—
(a) the nomination or appointment of the judges of the superior courts;
(b) the nomination or appointment of any other public officer whom this Constitution or legislation requires the President to appoint;
(c) the nomination or appointment or dismissal of Cabinet Secretaries and other State or Public officers;
(d) the nomination or appointment or dismissal of a high commissioner, ambassador, or diplomatic or consular representative;
(e) the power of mercy; and
(f) the authority to confer honours in the name of the people and the Republic.

Ladies and gentlemen, those listed 6 items are what Ruto as Deputy cannot do, and consists the Extraordinary public duties that only a president can do, and the text does not even provide for extra room using words like “or any other national crisis (manufactered or real)”

So unless these nominations, power of mercy and the conferring of honors are a 10 year continuous/contiguous event, i think our constitution has shot down that possibility.

But then again this is Kenya, anything is possible, so we could set up a situation where we are hiring and firing these civil servants at the rate of 1 per week for the next 20 years.

In conclusion, these amendments have provided some temporary relief and jubilation for the jubilant jubilee crowd, but what really has changed?

2 comments on “ASP 12th Assembly Resolution 7 vs Presence of UhuRuto at the ICC

  1. Even though judge Osuji has the propensity of ruling in favour of the defence, I dont think that he will this time round.

    The reasons are very clear. From both the OTP and Victims lawyer, there is no basis for a blanket excusal because the duties of the DP is that of an “assistant”. In otherwords, no government function is going to be hampered if he is at the Hague.

    The DP is not a co-president/principal whos input must be taken into consideration before any decisions are taken in the government. He has no authority to countermand anything the president does the way Raila used to do in the coalition government.

    The only way he can be absent from trial is when he is holding office on behalf of Uhuru Kenyatta. That is, when the president is out of the country, sick, in a comma or dead.

    Uhuru can help Ruto by constantly being out of the country or in a comma. We know that this wont happen.

    But the more interesting thing is that, as soon as the Uhuru crowd realised that its only Ruto left on the hook, they seem to have adopted a hands, eyes, ears off approach to the excusal matter. Yaani Ruto must die his own death.


  2. To all DC members and readers, first its to wish you all a Happy and prosperous 2014 and welcome you back to the forum

    I must admit that operating under the UhuRuto regime is somewhat of a challenge and a quick visit of various social media platforms one easily discerns a general feeling of doom and hopelessness.

    There are so many mega scandals, and general incompetence all around to the extent that people appear to be resigned to their fate and are just trudging along hoping to just move on

    Insecurity is worse than ever, poverty and /or high costs of living is biting hard. Worse, all the things that jubilants voted against (i.e old guard and “loser” politicians) are being edged back into mainstream activities.

    Interestingly, the very issues that Ruto accused Raila as PM for e.g skewed appointments, slow adoption of demands from RV, suspect projects, evictions and resettlements of IDPs taking too long etc, – these very issues are once again in the spotlight and amazingly Ruto is now the chief defender of the poor response from government. Either the man is an absolute idiot or he is an absolute goof ball


    Anyway on to the main issue for this post – The purpose of this thread was to have a separate area to specifically understand/discuss the impact of the ASP resolutions of 2013.

    Just as I thought, the focus of the ASP ammendments will shift to two areas

    a) is a blanket excusal feasible under the ammendments

    b) intepretation of what constitutes “extraordinary duties” as applies to the president and also as applies to his deputy. And further how can these exceptional circumstances or extraordinary duties be applied in such a way that from the invisible Joshua Arap Sang’s viewpoint as co-accused, they can be considered to be fair and impartial and not favoring some co-accused on account of status, which the Rome Statute explicitly states is a non-issue.

    In the post above I cover briefly what I thought are duties that can only be carried out exclusively by a president as described in the constitution.

    Well Ruto has applied for this excusal and the OTP has responded

    But interestingly it is the victims response that calls into question what exactly constitutes “extraordinary duties” and further requires an interpretation of “highest office” among other issues

    From that text, the Trial Chamber and possibly later the Appeals Chamber will have to provide a ruling/guidance as the trials proceed (if they do proceed that is) on the specific areas as defined under paragraphs numbered

    5 & 6 and the reasoning presented from paragraphs 13 through 18

    This text complements and reinforces the argument presented by the OTP

    Meanwhile the trial chamber ruled that while these issues are under consideration, Ruto will still continue to attend trial

    It is going to be very interesting how the Judges will rule on this. Meanwhile over in CAR, the president and his PM have resigned in public interest also known as genocide. While over in South Sudan, there is turmoil of genocidal proportions. How the ICC deals with Kenya will automatically become a benchmark for future actions and will either make or break the ICC and what it stands for.


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